Ubi Jus, Ibi Remedium?

First, Texas’s “improper photography” law, in our witless legislature made it a felony to broadcast or transmit a visual image of a person without that person’s consent and with the intent to arouse or gratify anyone’s sexual desire.

So if you have a Republican friend whom you think will be sexually excited by this…

…and you email it to him, you’ve just committed a felony. You could lose your right to vote, your right to hold public office, and your right to own a firearm.

But the overbroad statute was probably written by our moronic legislature to address transmission or broadcast of sexually explicit images without the subject’s consent.

So if you have a friend whom you think will be sexually excited by a sexually explicit photograph of, say, a porn star—provided gratis on the star’s website—and email that image to your friend, you’ve just committed a felony.

But the overbroad statute was probably written by our imbecilic legislature to address transmission or broadcast of sexually explicit images without the subjects’ consent and to which the subject would object—malicious transmission.

Which brings us to this lawsuit against a revenge-porn website. The plaintiffs took nude pictures of themselves and sent them to significant others, or they allowed others to take pictures of them, and after the significant others became less significant the pictures wound up on websites that collect such things, publish them, and then apparently demand money for their removal. (See also Marc Randazza’s discussion of IsAnybodyDown.com.) The plaintiffs are suing for intentional infliction of emotional distress (IIED)—intentionally or recklessly, by extreme and outrageous conduct, causing severe emotional distress.

Take it as a given that the republication is intentional, that it caused severe emotional distress to the plaintiffs, and that it was intended to cause emotional distress (“revenge” porn, right?). The subject of the speech (publication of photographs being “speech”) is not of public concern, so free speech does not bar the publishers being held liable. Aside from whether they are protected by Section 230 of the Communications Decency Act, the likely question in civil court is whether their conduct was extreme and outrageous—a good question for a jury.

Which brings us back to criminal law: the portion of Texas’s “improper photography” law purporting to ban transmission or broadcast is substantially overbroad: at the very least it reaches a great deal of expression (sending the picture of the Secretary of State; sharing the picture of the porn star) that is and should be protected free speech. An overbroad restriction on speech is void as written. So the criminal prosecution of the revenge-porn publishers, whose communications arguably should not be protected, would fail in the face of a concerted free-speech defense.

If Texas legislators were to learn to read, read a book or two, and then rewrite the statute to cover only malicious transmission, would it pass First Amendment muster? For it to do so, the Supreme Court would have to define a new category of unprotected speech, since revenge porn doesn’t fit into any of the existing categories—fighting words, obscenity, libel, and child pornography.

That could happen, but it’s a long way down the road.

(There is one way these plaintiffs could have avoided this emotional distress: they could not have shared images that they didn’t want the rest of the world to see. A variation of the New York Times rule (never write anything you wouldn’t want published on the front page of the NYT) applies. If you have kids, talk to them about this.)

Yes, I wrote about it at the time. The Dallas Court of Appeals, El Paso Court of Appeals, and Houston’s 14th Court of Appeals all have held it constitutional. Lawyering makes the difference. If the Court of Criminal Appeals hears discretionary review on the San Antonio case, I expect the statute to fall.